1929 Master Solar Lease FPLJUI
MASTER SOLAR LEASE AGREEMENT
THIS MASTER SOLAR LEASE AGREEMENT ("Agreement") is made this 4 ray
of ' 11C4. , 2017 ("Effective Date"), by and between the City of Sanford, Florida, 300
North Park venue, P.O. Box 1788, Sanford, Florida 32772-1788 ("Lessor") and Florida Power
& Light Company, a Florida corporation ("Lessee"). Lessor and Lessee are sometimes
individually referred to herein as a "Party" and collectively as the "Parties."
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WHEREAS, Lessor is the fee simple owner of those certain real properties located in
Seminole County, Florida, as more particularly described on Exhibit A attached hereto and
incorporated herein by this reference (each individually and collectively, the "Property");
WHEREAS, within and upon each Property, Lessor desires to permit Lessee to utilize the
areas depicted on Exhibit B attached hereto and incorporated herein by this reference (each
individually and collectively, the "Demised Premises") upon the terms and conditions set forth
in this Agreement; and
WHEREAS, Lessee desires to lease the Demised Premises from Lessor, and Lessor
desires to lease the Demised Premises to Lessee, for the installation of certain renewable energy
generating equipment, including, without limitation, solar panels, solar canopy structures,
electrical power inverters, interconnection equipment, electrical wiring, underground conduit,
collection lines, wire management systems, charging stations, electric meters, metering and
switch cabinets, power distribution boxes and racking systems (individually and collectively, the
"Equipment") upon the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereby agree as follows:
1. Demised Premises; and Addition of Property and Demised Premises.
(a) Demised Premises. Lessor hereby demises and leases the Demised
Premises to Lessee, and Lessee hereby leases the Demised Premises from Lessor, upon the
terms, covenants and conditions set forth in this Agreement.
(b) Addition of Property and Demised Premises. Upon the mutual written
agreement of each of the Parties, including as to the type of Equipment that will be installed,
Exhibits A and B may be amended from time to time to include additional Property and/or
Demised Premises. In such case, all terms and conditions set forth in this Agreement shall apply
to such additional Property and Demised Premises; provided however, with respect to such
additional Property and Demised Premises, the Construction Term and Operating Term (as each
are defined hereafter), shall be calculated commencing from the effective date of the amendment
adding the specific additional Property and Demised Premises, accordingly, and in the case of
the Operating Term, an additional six (6) months after such date.
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2. Use. The Demised Premises may be used by Lessee for the purposes of
constructing, installing, operating, inspecting, maintaining, repairing, enlarging, modifying,
removing, testing and replacing the Equipment and any additional equipment required to
generate, measure, and transmit solar power, together with the following rights:
(a) Access. The right of ingress and egress to and from the Demised Premises
over the Property necessary to access the Demised Premises.
(b) Signage. The right, at Lessee's sole cost and expense, to install signage
on and around the Equipment and on, over, under, through and across the Demised Premises at
the point of access to the Equipment (to the extent allowed by applicable law) for any and/or all
of the following purposes: (i) identifying Lessee's ownership of the Equipment and prominently
displaying Lessee's corporate name, trade name(s), trademark(s), and logo(s) on the Equipment
and all structures supporting the Equipment; (ii) describing the Equipment and its purpose and
operation to interested parties accessing the Demised Premises (i.e. telling the distributed solar
generation story); (iii) instructing parties accessing the Demised Premises to use caution so as
not to damage the Equipment; and (iv) provide all necessary safety and hazard warnings. The
location, design and content of such signage shall be subject to the prior approval of Lessor,
which approval shall not be unreasonably withheld, conditioned or delayed. Such signage shall
be removed by Lessee upon the final removal of the Equipment from the Demised Premises in
accordance with the terms of this Agreement. Subject to Section 6(a) below, Lessor shall have
the right, at Lessor's sole cost and expense to co -brand on Lessee's signage, provided that Lessor
first obtains Lessee's prior written consent, which Lessee may approve or withhold such consent
in its absolute and sole discretion.
(c) Power Monitoring. The right to incidental access and use of Lessor's
electrical systems for purposes of powering Lessee's computer equipment used in monitoring the
power generated from the Equipment at the Demised Premises. Additionally, if, and so long as,
Lessor provides an internet access system for use by guests and other visitors to the Property,
Lessor will permit Lessee to use, at no cost to Lessee, such internet access system in connection
with Lessee's power monitoring system described in the preceding sentence, and Lessor shall
provide Lessee with the necessary access codes and other necessary information to use such
internet access system; provided, however, Lessor does not warrant the stability, security or
continuous operation of any such internet access system.
3. Term.
(a) Construction Term. The construction term of this Agreement shall
commence on the Effective Date and continue for six (6) months ("Construction Term"). The
Construction Term shall end six (6) months after the Effective Date unless before that date
Lessee notifies Lessor that Lessee elects to terminate this Agreement or that the Commercial
Operations Date has occurred. For purposes of this Agreement, "Commercial Operations
Date" shall mean the date on which the Equipment becomes operational as determined by FPL.
For the purposes of this section, "operational" means the date on which Lessee has (i) received
any and all approvals, licenses, and permits necessary to operate the Equipment, (ii) the
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Equipment is installed on the Demised Premises and is connected to the electric transformer, and
(iii) the Equipment is generating solar power
(b) Operating Term. The "Operating Term" of this Agreement shall
commence on the day immediately following the last day of the Construction Term, and continue
for a term ending on the fifteenth (15th) anniversary of the Commercial Operations Date. The
Operating Term and the Construction Term are collectively referred to herein as the "Term".
4. Installation and Location of Equipment. From and after the Effective Date,
Lessee, as well as any permitting, licensing, regulating or approving entity, agency or authority,
any utility intending to purchase electricity generated by the Equipment, and the agents,
employees, contractors, subcontractors, consultants and representatives of each (collectively, the
"Lessee Parties"), have ingress, egress and access to the Demised Premises at all times during
the Term, twenty-four (24) hours -a -day, seven (7) days -a -week, for and including to inspect,
construct, install, maintain, repair, enlarge, modify, remove, replace, test and operate the
Equipment. Lessee Parties will use commercially reasonable efforts to minimize any
interference with Lessor's use and operations on the Property. Lessor shall cooperate as
necessary with Lessee (at no cost to Lessor) in Lessee's efforts to obtain all permits, licenses and
approvals necessary for the installation and operation of the Equipment. Except as otherwise
expressly set forth herein, Lessee shall have no right to access or utilize any other portion of
Lessor's Property other than the Demised Premises. Lessee may locate and install the Equipment
on the Demised Premises as is reasonably necessary in order to achieve optimal solar power
generation. Installation of the Equipment shall be in compliance with all applicable laws and
ordinances and shall not result in the imposition or creation of a lien against any portion of the
Demised Premises.
Upon completion of the installation of the Equipment by Lessee, Lessee shall provide
Lessor with an "as -built" survey of the Equipment installed on the Demised Premises which shall
serve as a replacement Exhibit B.
5. and after the Effective Date, Lessee, as well as any permitting, licensing,
regulating or approving entity, agency or authority, any utility intending to purchase electricity
generated by the Equipment, and the agents, employees, contractors, subcontractors, consultants
and representatives of each (collectively, the "Lessee Parties"), have ingress, egress and access
to the Demised Premises at all times during the Term, twenty-four (24) hours -a -day, seven (7)
days -a -week, for and including to inspect, construct, install, maintain, repair, enlarge, modify,
remove, replace, test and operate the Equipment. Lessee Parties will use commercially
reasonable efforts to minimize any interference with Lessor's use and operations on the Property.
Lessor shall cooperate as necessary with Lessee (at no cost to Lessor) in Lessee's efforts to
obtain all permits, licenses and approvals necessary for the installation and operation of the
Equipment. Except as otherwise expressly set forth herein, Lessee shall have no right to access
or utilize any other portion of Lessor's Property other than the Demised Premises. Lessee may
locate and install the Equipment on the Demised Premises as is reasonably necessary in order to
achieve optimal solar power generation. Installation of the Equipment shall be in compliance
with all applicable laws and ordinances and shall not result in the imposition or creation of a lien
against any portion of the Demised Premises.
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6. Rent. Lessee shall not be charged any rent under this Agreement in connection
with its lease of the Demised Premises.
7. Interference. During the Term, Lessor shall not directly or indirectly Interfere,
or cause or permit to be caused any Interference, with the Equipment. For purposes of this
Agreement "Interfere" and "Interference" shall mean interference with Lessee's use, operation,
access, maintenance or repair of the Equipment on a sustained basis as a result of Lessor's direct
or indirect actions, including without limitation the following:
(a) Placement of any equipment, sign, logo, structure, or improvements on,
across, under or over any portion of the Equipment without the prior written consent of Lessee,
which Lessee may approve or withhold such consent in its absolute and sole discretion;
(b) Placement of any equipment, sign, structure or improvement in a location
that interferes with any portion of the Equipment's exposure to sunlight, as determined by Lessee
in its sole discretion;
(c) Interference in any way with any portion of the Equipment's ability to
generate solar power, as determined by Lessee in its sole discretion;
(d) Any portion of the Equipment to become subject to any lien, mortgage,
deed of trust, security agreement, mechanics lien or other such encumbrance not caused by
Lessee, unless the holder of such lien, mortgage, deed of trust, security agreement or other such
encumbrance provides Lessee with a subordination and non -disturbance agreement or a non-
disturbance agreement, in form and substance acceptable to Lessee, within thirty (30) days
following Lessee's request for same;
(e) Any portion of the Demised Premises to be maintained, altered, modified,
repaired, replaced or compromised in such a way that it can no longer support the Equipment or
any portion of the Equipment or the use of any portion the Equipment is impaired, as determined
by Lessee in its sole discretion;
(f) Disruption with Lessee's access to any portion of the Demised Premises;
and/or
(g) Sale, transfer, assignment, lease or sublease any portion of the Demised
Premises, other than subject to Lessor's obligations under this Agreement.
In the event of that Lessor Interferes or causes Interference, Lessee will provide Lessor
with a written summary documenting such Interference ("Interference Notice"). In the event
Lessor is in violation of any of the above -listed items in this section, and such violation
continues for fifteen (15) days or more following Lessee's delivery of an Interference Notice,
then in addition to the rights granted Lessee under Section 18 below, Lessee may elect to
terminate this Agreement immediately upon delivering written notice to Lessor.
8. Mechanics' Liens.
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(a) Lessee's Actions. Installation of the Equipment shall not result in the
imposition or creation of a lien against any portion of the Property. If any mechanic's,
contractor's or material supplier's lien is asserted against all or any part of the Property in
connection with Lessee's installation, construction or operation of the Equipment or any related
activities, Lessee shall indemnify Lessor against any loss, claim, damage or expense, including
attorneys' fees, that Lessor may incur in connection with such assertion of such lien, and, if any
notice or statement of lien is filed or recorded in any public office in connection with Lessee's
installation, construction or operation of the Equipment or any related activities, Lessee shall
cause such notice or statement of lien to be released or bonded off, within thirty (30) days from
the date Lessor gives written notice of such lien. Lessee's obligations under this section shall
survive the expiration or earlier termination of this Agreement.
(b) Lessor's Actions. If any mechanic's, contractor's or material supplier's
lien is asserted against all or any part of the Demised Premises or Property by anyone having
provided labor, services, material or equipment at the request of Lessor, and if Lessee is made a
party to any action or proceeding to foreclose any such asserted lien, Lessor shall indemnify
Lessee and hold it harmless against any loss, claim, damage or expense, including attorneys'
fees, that Lessee may incur in connection with such action or proceeding, including paying any
judgment that may be entered therein.
9. Maintenance; Repair; Replacement; Reinstallation.
(a) During the Term, Lessee shall, at Lessee's sole cost and expense, operate
and maintain the Equipment in good working order and in a safe, clean manner.
(b) In the event the Equipment or any portion thereof is damaged or destroyed
at any time during the Term, Lessee shall have the right, but not the obligation, to repair, replace
or reinstall the Equipment or any portion thereof within the Demised Premises.
(c) Lessor shall conduct, or cause to be conducted, all routine and necessary
maintenance of the Demised Premises and shall ensure that the Demised Premises shall remain
able to support the Equipment for the duration of the Term. If Lessor has to replace or engage in
widespread repair of the paving or other improvements located on or near the Demised Premises
during the Term, then Lessor shall provide Lessee with at least ninety (90) days prior written
notice and Lessee will coordinate protection of the Equipment with Lessor as appropriate in
order to accommodate Lessor's construction schedule.
(d) If the Demised Premises are substantially destroyed by fire or other
casualty, Lessee may by written notice, given not later than thirty (30) days after the date of such
destruction, terminate this Agreement, in which event, any insurance proceeds received by
Lessor in connection therewith shall be paid to Lessee.
(e) Lessee shall have the right, at Lessee's sole cost and expense, to repair,
replace or reinstall any affected Equipment on the Demised Premises following complete or
partial destruction of Lessor's improvements to the Demised Premises and/or Lessee's
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Equipment thereon. Following complete destruction of Lessor's improvements to the Demised
Premises, Lessor may provide Lessee with a mutually acceptable alternative location on or off
the Property approved by Lessee on which Lessee may install the Equipment. If, however,
Lessor is unable to provide an alternative location for the Equipment that meets such standard,
and Lessee does not approve such alternate site, Lessee shall have the right, upon written notice
to Lessor, to terminate this Agreement. If such new location is acceptable to Lessee, Exhibit B
(and, if necessary, other exhibits) to this Agreement will be amended to reflect the new location
of the Demised Premises.
(f) Lessee shall have the right, in its sole discretion, to remove all or a portion
of the Equipment at any time during the Term, and such removal shall not constitute a default or
be deemed a termination under this Agreement.
10. Taxes. Lessor shall submit a copy of the annual statement for real property taxes
for the Property to Lessee within ten (10) business days after the date that Lessor receives such
statement from the taxing authority. Lessor shall pay when due all real property taxes for the
Property. In the event that Lessor fails to pay any such real property taxes or other fees and
assessments, Lessee shall have the right, but not the obligation, to pay such owed amounts and
recover the amount so paid from Lessor, Notwithstanding the foregoing, Lessee shall pay any
personal property tax which is attributable to the Equipment or the Equipment's installation or
placement on or within the Demised Premises. Lessor hereby grants to Lessee the right to
challenge, whether in a court, administrative proceeding, or other venue, on behalf of Lessor
and/or Lessee, any personal property or other tax assessments that may affect the Demised
Premises as a result of the Equipment. If Lessor receives notice of any personal property or
other property tax assessment against the Lessor which may affect Lessee or the Equipment and
is attributable, in whole or in part, to the Equipment, Lessor shall provide timely notice of such
assessment to Lessee sufficient to allow Lessee to consent to or challenge such assessment if a
right to challenge the assessment is then available under applicable law. Further, Lessor will
provide to Lessee any and all documentation in the possession of Lessor that is associated with
such assessment and will execute any and all documents reasonably necessary to effectuate the
intent of this section, provided that Lessor shall not be required to incur any expense or any risk
of material liability.
Il. Insurance. Lessee will maintain at all times during the Term, the insurance
designated in this section in accordance with the terms and conditions required by this
section. Such policy or policies shall be issued by companies authorized to do business in the
State of Florida with a minimum A.M. Best financial rating of "A— VII".
(a) Commercial General Liability Insurance with limits of Three Million
Dollars ($3,000,000) per occurrence combined single limit for bodily injury and property
damage.
(b) Business Automobile Liability Insurance with limits of Two Million
Dollars ($2,000,000) for bodily injury and property damage.
(c) Workers' Compensation Insurance in compliance with Florida Statutes.
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Lessee has the right to meet the insurance designated in this section through any
combination of self-insurance, primary or excess coverage. Should Lessee self -insure, then prior
to accessing the Demised Premises, Lessee will provide Lessor with a letter of such self-
insurance which will include a reference to publicly available financial statements and annual
reports.
Lessor and Lessee, for themselves and their respective insurers, waive any right to assert
any claim against the other Party, to the extent such claim is covered by the waiving party's
insurance. Each Party shall waive all rights of subrogation of their respective insurers.
12. Indemnification. Lessee shall indemnify Lessor from and against all losses,
claims, damages or expenses, including attorneys' fees, incurred by Lessor in connection with
any third party claims for personal injury or death to persons and damage to Lessor's personal
property arising during the Term, to the extent arising from the negligence or willful misconduct
of Lessee, its agents, employees, representatives, contractors, or sub -contractors up to One
Million Dollars ($1,000,000). Lessor shall indemnify Lessee from and against all losses, claims,
damages or expenses, including attorneys' fees, incurred by Lessee in connection with any third
party claims for personal injury or death to persons and damage to Lessee's personal property
arising during the Term, to the extent arising from the negligence or willful misconduct of
Lessor, its agents, employees, representatives, contractors, or sub -contractors up to One Million
Dollars ($1,000,000). In no event shall Lessor or Lessee be liable to the other for consequential,
special, exemplary, punitive, indirect or incidental losses or damages, nor shall any parent,
subsidiary, affiliate or employee (other than those engaging in willful misconduct) of Lessor or
Lessee have any liability under this Agreement. Neither Lessor nor Lessee, nor their respective
insurer, shall, without the prior written consent of the other Party, which consent will not be
unreasonably withheld, enter into the settlement or compromise of any claim brought against the
indemnified Party which is the subject of indemnification under this Agreement.
Notwithstanding the foregoing, this paragraph shall not be construed or interpreted as a waiver of
the Lessor's sovereign immunity and the limits established in Section 768.28, Florida Statutes.
This section shall survive the expiration or earlier termination of this Agreement.
13. Equipment to Remain Personal Property of Lessee. The Equipment is and will
remain the property of Lessee, its successors or assigns, regardless of its use or manner of
attachment to the Demised Premises. Lessor agrees to execute such further documentation as is
reasonably necessary to ensure that the Equipment does not constitute, and is not deemed to be, a
fixture attached to the Demised Premises. Except as expressly set forth in this Agreement,
Lessor will have no right, title, or interest in the Equipment, and no right to purchase or
otherwise acquire title to or ownership of the Equipment, and Lessor hereby expressly disclaims
any right, title or interest in or to the Equipment, whether arising by lien, by operation of law, or
otherwise.
14. Subordination. Lessor warrants that the Property is not, as of the Effective Date,
subject to any mortgage or other monetary lien, other than liens for taxes and assessments
imposed by law. If Lessor hereafter determines to mortgage all or any part of the Property and
the proposed mortgage document does not acknowledge the priority of this Agreement, then
prior to execution of such mortgage Lessor will secure a subordination and non -disturbance
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agreement or non -disturbance agreement in commercially reasonable form from the mortgagee,
which provides that such mortgagee or lienholder will not disturb Lessee's possession or rights
under this Agreement, or terminate this Agreement so long as Lessor is not entitled to terminate
this Agreement or Lessee's interest in the Demised Premises.
15. Quiet Enjoyment. Lessor represents and warrants to and covenants with Lessee
that: (a) Lessor has full right, power and authority to execute this Agreement; (b) Lessor has
good and unencumbered title to the Demised Premises free and clear of any liens, mortgages or
other encumbrances; (c) Lessor's execution and performance of this Agreement will not violate
any laws, ordinances, covenants, or the provisions of any mortgage, lease, or other agreement
binding on Lessor; (d) there are no agreements with any third parties that may adversely affect
the Equipment or the Equipment's exposure to sunlight, (e) during the Term, Lessor will not
enter into any agreements with any third parties that may adversely affect the Equipment or the
Equipment's exposure to sunlight, and (f) all times during the Term, Lessee's quiet enjoyment of
the Demised Premises or any part thereof shall not be disturbed.
16. Default by Lessee. The happening of any one or more of the following events,
upon the expiration of any applicable notice and cure period, shall be events of default under this
Agreement:
(a) The failure of Lessee to fully perform any other of its covenants under this
Agreement within sixty (60) calendar days after Lessee receives written notice of such default
from Lessor; provided, however, if such non -monetary default cannot reasonably be cured within
such sixty (60) day time period, Lessee shall not be deemed in default hereunder if Lessee has
commenced to cure such default within said sixty (60) day time period and thereafter continues
with diligence to complete the cure of such default.
17. Lessor's Remedies. Lessor's exclusive remedies for events of default by Lessee
shall be limited to the following:
(a) Upon an event of default as set forth in Section 15(a) above, and after the
expiration of the applicable notice and cure period, Lessor may perform, or cause to be
performed, on behalf and at the expense of Lessee, any or all of the undertakings or obligations
as to which Lessee remains in default, in which event Lessee will reimburse Lessor for such
actual reasonable costs and expenses, within forty-five (45) days following Lessee's receipt of
Lessor's invoice and supporting documentation. Notwithstanding the preceding sentence, Lessor
may not perform any obligation of Lessee under Section 8(a) or take any other action that
relocates or physically alters any of the Equipment that at the time is in operable condition.
(b) Lessor may exercise any other remedy available at law or in equity
except for ejectment, termination or rescission of this Agreement, all of which are expressly
excluded.
In any action or proceeding to enforce any of Lessee's obligations under this Agreement,
Lessor may recover all costs and expenses, including reasonable attorneys' fees, incurred by
Lessor in connection with such action or proceeding or any appeal therefrom or review thereof.
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18. Default by Lessor. The failure of Lessor to fully perform any term, provision, or
covenant of this Agreement within sixty (60) calendar days following written notice of such
default from Lessee; provided, however, that if such default cannot reasonably be cured within
such sixty (60) day time period, Lessor shall not be deemed in default hereunder if Lessor has
commenced to cure such default within said sixty (60) day time period and thereafter continues
with diligence to complete the cure of such default.
19. Lessee's Remedies. Upon an event of default by Lessor as set forth in Section 17
above, and after the expiration of the applicable notice and cure period, in addition to and not by
way of limitation of the exercise by Lessee of any and all rights and remedies Lessee may have
at law or in equity, Lessee may: (a) cure the default and be reimbursed by Lessor within thirty
(30) days following Lessor's receipt of Lessee's invoice and supporting documentation of costs
and expenses associated with curing the default; (b) terminate this Agreement; and/or (c)
exercise any remedy Lessee may have at law or in equity. In any action or proceeding to enforce
any of Lessor's obligations under this Agreement, Lessee may recover all costs and expenses,
including reasonable attorneys' fees, incurred by Lessee in connection with such action or
proceeding or any appeal therefrom or review thereof.
Notwithstanding the foregoing, in the event that Lessor Interferes or causes Interference
with the Equipment of this Agreement, and such Interference is not cured within the fifteen (15)
day time period set forth in Section 6 above, in addition to the remedies set forth in this Section
18, Lessor shall also be required to reimburse Lessee any and all costs incurred or expended by
Lessee in connection with the removal of the Equipment from the Demised Premises, together
with any and all costs incurred or expended by Lessee in connection with either, at Lessee's sole
option, (i) the disposal of the Equipment, or (ii) the relocation of the Equipment to another part
of the Demised Premises, Property or other real property, as applicable, whether or not such
replacement real property is owned by Lessor.
20. Removal. Upon the expiration or earlier termination of the Term by Lessee,
Lessee shall continue to have the right of reasonable access to the Demised Premises in order to
remove the Equipment, and repair and restore the affected portions of the Demised Premises to
substantially the same condition as practical as existed immediately prior to Lessee's installation
of the Equipment, at Lessee's sole cost and expense; except as expressly set forth otherwise in
Sections 6 and 18 above, where the removal and disposal or relocation costs of the Equipment,
and repair and restoration of the Demised Premises, shall be at Lessor's sole cost and expense.
21. Tax Credits, Financial Incentives, Sale of Enemy. Installation and operation of
the Equipment on the Demised Premises may result in the availability of federal and/or state tax
credits, and other financial incentives (collectively hereinafter "Incentives"). Lessee is and shall
be the sole recipient and beneficiary of any and all such Incentives, which shall be distributed,
disbursed and/or assigned in Lessee's sole discretion. Lessor shall have no right to any
Incentives, except as otherwise agreed to in writing by Lessee. Furthermore, any and all solar
power electricity produced by or relating to the Equipment ("Energy"), and the right to utilize
same, shall be for the sole benefit of Lessor. Any Energy consumed by Lessor shall not impact
Lessor's retail electric bill from Lessee. Lessor shall have no right to sell the Energy, or to
engage in any "net metering" involving the Energy. In consideration for entering into this
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Agreement, Lessor shall be billed for the solar power generated by the Equipment on the
Demised Premises at the customer's existing rate for the sole and exclusive use of the Lessor at
the applicable Demised Premises and is not to be sold or used by any other party or for any other
use whatsoever.
22. Assignment; Leasehold Financing.
(a) Except as permitted by Section 21(b) below, Lessee shall not assign this
Agreement or any interest herein without the prior written consent of Lessor. Lessor shall not
assign its interest in this Agreement to anyone other than a purchaser or Lessee of the Demised
Premises without the prior written consent of Lessee. Neither Party will unreasonably withhold,
condition or delay its consent to an assignment by the other Party. The terms and conditions of
this Agreement will bind and benefit the respective successors and permitted assigns of the
Parties. Following any permitted assignment or transfer by operation of law, the terms "Lessor"
and "Lessee" shall be deemed to refer to the relevant transferee or successor, unless the context
clearly indicates that the term refers only to the original Party so identified.
(b) Lessor acknowledges that Lessee's interests under this Agreement and in
the Equipment are and will be encumbered by Lessee's existing mortgage. Additionally, Lessee
may, upon notice to Lessor, mortgage or grant a security interest in this Agreement and the
Equipment, and may assign this Agreement and the Equipment to any of Lessee's future
mortgagees or holders of security interests, including their successors or assigns (Lessee's
existing mortgagee and any future Lessee mortgagees or security interest holders are collectively
referred to herein as the "Mortgagees"), and such Mortgagees shall have the right, but not the
obligation, to assume Lessee's rights and obligations under this Agreement. In such event,
Lessor shall execute such consent to leasehold financing as may reasonably be required by
Mortgagees. Lessor agrees to notify Lessee and Lessee's Mortgagees simultaneously of any
default by Lessee and to give Mortgagees the same right to cure any default as Lessee, except
that the cure period for any Mortgagees shall not be less than thirty (30) calendar days after
receipt of the default notice, as provided in Section 15 above. All such notices to Mortgagees
shall be sent to Mortgagees at the address specified by Lessee. Failure by Lessor to give
Mortgagees such notice shall not diminish Lessor's rights against Lessee, but shall preserve all
rights of Mortgagees to cure any default as provided in Section 15 above.
23. Condemnation. In the event of condemnation of some or all of the Demised
Premises, Lessor and Lessee shall each be entitled to pursue their own separate awards with
respect to such taking, as their respective interests appear. Sale of all or part of the Property to a
purchaser with the power of eminent domain in the face of the exercise of the power shall be
treated as a taking by condemnation for purposes of this Agreement.
24. Notices. All notices, demands, requests, consents, approvals and other
instruments required or permitted to be given pursuant to this Agreement shall be in writing,
signed by the notifying Party, or officer, agent or attorney of the notifying Party, and shall be
deemed to have been effective upon delivery if served personally, including but not limited to
delivery by messenger, overnight courier service or by overnight express mail, or on the third
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(3rd) business day after posting if sent by registered or certified mail, postage prepaid, return
receipt requested, and addressed as follows:
To Lessor: The City of Sanford, Florida
300 North Park Avenue
P.O. Box 1788
Sanford, Florida 32772-1788
Attn:
To Lessee: Florida Power & Light Company
700 Universe Boulevard, CEA/JB
Juno Beach, Florida 33408
Attn: Vice President of Corporate Real Estate
With copy to: Florida Power & Light Company
700 Universe Boulevard, LAW/JB
Juno Beach, Florida 33408
Attn: General Counsel
The address to which any notice, demand, or other writing may be delivered to any Party as
above provided may be changed by written notice given by such Party.
25. Memorandum of Lease. It is specifically understood and agreed by both Parties
hereto that a Memorandum of Lease ("Memorandum") in substantially the form of the attached
Exhibit C will be executed by the Parties and recorded in the Public Records of the county in
which the Demised Premises is located, indexed in the land records of that office in the names of
both Parties hereto and will be a matter of public record. Upon completion of the installation of
the Equipment by Lessee, Lessee shall provide Lessor with an "as -built" survey of the
Equipment installed on the Demised Premises which shall serve as a replacement to the exhibit
attached to the Memorandum, and Lessor hereby authorizes Lessee to execute and record an
amendment to the Memorandum without the Lessor's signature effectuating such change.
26. Miscellaneous.
(a) Entire Agreement; Modification; Waiver. All of the representations
and obligations of the Parties are contained herein and no modification, waiver or amendment
of this Agreement or of any of its conditions or provisions shall be binding upon a Party unless
in writing, signed by that Party or a duly authorized agent of that Party empowered by a written
authority signed by that Party. The waiver by either Party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach of that
provision by the same Party, or of any other provision or condition of this Agreement. No
waiver shall be implied by delay or any other act or omission of either Party.
(b) Governing Law; Waiver of Jury Trial. This Agreement shall be subject
to and governed by the laws of the State of Florida, without regard to its conflict of laws
principles. The Parties agree that any action or proceeding arising out of or related in any way to
this Agreement shall be brought solely in a court of competent jurisdiction in the State of
11
Florida. EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY,
AND INTENTIONALLY WAIVES THE RIGHT EITHER OF THEM MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
(c) Attorneys Fees. In the event of any litigation arising between the parties
under this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and
paralegals' fees and court costs at all trial and appellate levels. This paragraph shall survive
expiration or termination of this Agreement coextensively with other surviving provisions of this
Agreement.
(d) Severability. Should any provision of this Agreement be held, in a final
and un-appealable decision by a court of competent jurisdiction, to be either invalid, void or
unenforceable, the remaining provisions of this Agreement shall remain in full force and effect,
and the Parties shall negotiate in good faith to restore insofar as practicable the benefits to each
Party that were affected by such ruling.
(e) Headings and Gender. All headings in this Agreement are inserted only
for convenience and ease of reference and are not to be considered in the construction or
interpretation of any provision of this Agreement. In construing this Agreement, the singular
shall be held to include the plural, the plural shall include the singular, and the use of any gender
shall include every other and all genders.
(f) Authority. Each Parry represents to the other that it has complete
authority to enter into this transaction.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, each of which, upon execution of a substantively identical counterpart by each
Party, shall be deemed an original, but all of which together shall constitute a single instrument.
A facsimile or similar electronic transmission of a counterpart signed by a Party hereto shall be
regarded as an original signed by such Party for all purposes.
(h) Binding Effect. This Agreement shall bind and benefit the Parties and
their respective successors and assigns.
(i) Publicity; Tours. The Parties acknowledge that each of them has a
legitimate business interest in receiving public recognition of their participation in the transaction
contemplated by this Agreement. In order to coordinate the timing, tone and content of any
publicity, however, each Party agrees that neither of them shall issue any press release or
otherwise publicize the existence or the terms of this Agreement without the prior written
approval of the other Party, which approval will not be unreasonably withheld or delayed,
provided that general advertising that refers to a "partnering" (or other terminology of similar
import) of either Party with the other Party for the purposes of any of the transactions
contemplated hereby, but does not expressly reference this Agreement or disclose any of the
terms hereof, shall not be subject to the provisions of this subsection. No filing that Lessee is
required by applicable law to make with any regulatory authority shall, by itself, be deemed to
12
violate the preceding sentence. Lessee shall have the right to give site tours of the Equipment on
the Demised Premises for visitors and other interested parties.
0) Construction. This Agreement shall not be construed more strictly
against one Party than against the other, merely by virtue of the fact that it may have been
prepared by counsel for one of the Parties, it being recognized that both Lessor and Lessee have
contributed substantially and materially in the negotiation and preparation of this Agreement,
and that the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this Agreement or any
exhibits, schedules, addendums or amendments hereto.
(k) Headings. All headings in this Agreement are inserted only for
convenience and ease of reference and are not to be considered in the construction or
interpretation of any provision of this Agreement. In construing this Agreement, the singular
shall be held to include the plural, the plural shall include the singular, and the use of any gender
shall include every other and all genders.
(1) Force Majeure. Lessor and Lessee (except with respect to the payment
of any monetary obligation) shall be excused for the period of any delay in the performance of
any obligation hereunder when such delay is occasioned by causes beyond its control, including
but not limited to work stoppages, boycotts, slowdowns or strikes; shortages of materials,
equipment, labor or energy; unusual weather conditions; or acts or omissions of governmental or
political bodies.
(m) Exhibits. All of the schedules and exhibits attached to this Agreement (or
attached from time to time after the Effective Date) are incorporated in, and made a part of, this
Agreement.
(n) Successors and Assigns. This Agreement shall be binding upon the Parties
hereto and their respective successors and assigns.
(o) Amendments. This Agreement may not be changed, altered or modified except
by an instrument in writing duly signed by both Parties.
(p) Compliance with Chapter 119, Florida Statutes, and Public Records
Requests.
(1). In order to comply with Section 119.0701, Florida Statutes, public records laws, the
Lessee, will do the following:
(i). Keep and maintain public records that ordinarily and necessarily would be required
by the Lessor in order to perform the service. For purposes of this Section 26 (p) of the
Agreement, "public records" means this Agreement and any Memorandum of this Agreement;
and
(ii). Provide the public with access to public records on the same terms and conditions
that the Lessor would provide the records and at a cost that does not exceed the cost provided in
Chapter 119, Florida Statutes, or as otherwise provided by law; and
13
(iii). Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law; and
(iv). Meet all requirements for retaining public records and transfer, at no cost, to the
Lessor, subject to Lessee's records retention policies, all public records in possession of the
Lessee upon termination of the contract and destroy any duplicate public records that are exempt
or confidential and exempt from public records disclosure requirements. All records stored
electronically must be provided to the Lessor in a format that is compatible with the information
technology systems of the Lessor.
(2). If the Lessee does not comply with a public records request, the Lessor shall enforce
the contract provisions in accordance with this Agreement.
(3). The Lessee shall promptly provide the Lessor with a copy of any request to inspect or
copy public records in possession of the Lessee and shall promptly provide the Lessor with a
copy of the Lessee's response to each such request.
IF THE LESSEE HAS QUESTIONS REGARDING THE APPLICATION
OF CHAPTER 119, FLORIDA STATUTES, TO THE LESSEE'S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT,
CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT (407) 688-5012,
CYNTHIA PORTER, CITY CLERK, CITY OF SANFORD, CITY HALL,
300 NORTH PARK AVENUE, SANFORD, FLORIDA 32771,
PORTERC(&SANFORDFL.GOV.
(q) Calculation of Time Periods. The Effective Date of this Agreement shall be when it has
been signed by the last party to sign same and when it has thereupon been mutually delivered. For
purposes of this Agreement, any time period that falls on a Saturday, Sunday or legal holiday under laws
of the State in which the Property is located, will be extended to the next business day. The final day of
any such period shall be deemed to end at 5:00 p.m., local time where the Property is located.
[Remainder of page blank; Signature pages follow]
14
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their respective duly authorized officers as of the date first above written.
Attest:
Cynthia Porter
City Clerk
For the use and reliance of The
City of Sanford only. Approved
as to form and legal sufficiency.
William L. Colbert, Esq.
City Attorney
LESSORICITY OF SANFORD
15
Witness:
HVI ��� � r ryAl �
P i I • a
16
LESSEE:
Florida Power & Light Company,
a Florida corporation
Timothy GVver,
Vice President of Corporate Real Estate
EXHIBIT A
Description of the Property
All that certain real property more commonly known as the Fort Mellon Park and Civic Center,
777 East Seminole Boulevard, Sanford, Florida 32771, Parcel No.: 30-19-31-515-0100-0000
(also described as Blocks 1, 2, 11, 12, 13, 14, 22 and Unlotted Block East of Block 13 and North
of Block 22, all lying North of First Street, Chapman & Tuckers Add., Plan Book 1, Page 24 and
Blocks A, B,C & D, ls` Street Extension, Plat Book 3, Page 76).
F.�U: "..
EXHIBIT R
Depiction of Demised Premises
Final As -Builds will be provided to the Lessor at completion and
automatically inserted as "Exhibit B".
Mil[.
EXHIBIT C
Form Memorandum of Lease
This Instrument has been prepared by or under
the supervision of (and after recording return to):
Patricia Lakhia, Esq.
Florida Power & Light Company (LAW/JB)
700 Universe Boulevard
Juno Beach, Florida 33408
MEMORANDUM OF SOLAR LEASE AGREEMENT
This Memorandum of Solar Lease Agreement ("Memorandum") is executed and
effective this day of , 2017 by and between The City of Sanford, Florida, 300
North Park Avenue, P.O. Box 1788, Sanford, Florida 32772-1788 ("Lessor") and Florida Power
& Light Company, a Florida corporation ("Lessee").
RECITALS
WHEREAS, on event date herewith, Lessor and Lessee entered into a written Master
Solar Lease Agreement ("Agreement') related to certain property situated in Seminole County,
Florida more particularly described in Exhibit A attached hereto and made a part hereof
("Property"); and
WHEREAS, Lessor and Lessee desire to provide record notice of the Agreement
pursuant to this Memorandum.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Lessor and Lessee hereby give record notice of the following:
1. Recitals. The foregoing recitals are true and correct and incorporated herein by
reference.
2. Lease. In accordance with the terms and conditions of the Agreement, Lessor has
leased that certain portion of the Property to Lessee more particularly described in Exhibit B
attached hereto and made a part hereof ("Demised Premises") for the purpose of constructing,
installing, operating, inspecting, maintaining, repairing, testing, enlarging, modifying, removing,
and replacing the solar Equipment (as defined in the Lease).
3. Term. The term of the Agreement commenced on the effective date of the
Agreement and continues for a term ending on the fifteenth (15th) anniversary of the effective
date of the Agreement, unless extended.
Exhibit C
4. Notice. This Memorandum is being executed by the parties solely to give public
notice of the interest of Lessee in the Demised Premises and is not intended to modify, amend or
alter in any respect whatsoever, the terms, covenants and agreements contained in the
Agreement.
5. Counterparts. This Memorandum may be executed in one or more counterparts,
each of which is an original, but all of which together shall constitute one and the same
instrument.
[Signatures and Acknowledgements Appear on Following Pages]
Exhibit C
IN WITNESS WHEREOF, Lessor and Lessee have executed this Memorandum on the
date hereinabove written.
Attest:
Cynthia Porter
City Clerk
For the use and reliance of The
City of Sanford only. Approved
as to form and legal sufficiency.
William L. Colbert, Esq.
City Attorney
STATE OF FLORIDA
COUNTY OF SEMINOLE
LESSORJCITY OF SANFORD
By:
Jeff Triplett, Mayor
Date:
ACKNOWLEDGEMENT
)ss:
On this day of , 2017, before me, the undersigned notary public,
personally appeared Jeff Triplett, Mayor of The City of Sanford, Florida, personally known to
me to be the person who subscribed to the foregoing instrument or who has produced
, as identification, and acknowledged that he executed the same
on behalf of said City and that he was duly authorized so to do.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
NOTARY PUBLIC, STATE OF FLORIDA
Exhibit C
Executed in the presence of: Lessee:
Name:
Name:
Florida Power & Light Company,
a Florida corporation
By:
Name: Timothy Oliver
Title: Vice President of Corporate Real Estate
ACKNOWLEDGEMENT
STATE OF FLORIDA )
)ss:
COUNTY OF PALM BEACH )
On this day of , 2017, before me, the undersigned notary public,
personally appeared Timothy Oliver, as Vice President of Corporate Real Estate of Florida
Power & Light Company, a Florida corporation, personally known to me to be the person who
subscribed to the foregoing instrument or who has produced , as
identification, and acknowledged that he executed the same on behalf of said corporation and
that he was duly authorized so to do.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
NOTARY PUBLIC, STATE OF FLORIDA
Exhibit C